DECISION ' By this common judgment I propose to dispose of six appeals namely Appeals Nos.Kar-96 of 2000, 97 of 2000, 98 of 2000, 99 of 2000, 100 of 2000 and 101 of 2000, all filed by M/s Choudhry Sizing Mills respectively against Vakeel, Ahmed Khan, Rehman Dad, Jamil, Ghufranullah and Liaquat Ali. These appeals have arisen from common order, dated 22nd September, 2000 of Sindh Labour Court No,3.
Karachi, whereby grievance petition of the aforesaid respondents were accepted.
2. The factual background of the said appeals may briefly be stated as follows. The respondents claimed to be working as permanent workmen in the Appellant Mills (three of them as Sizers, one as Gril Boy, one as Kangiman and one as Warper) for a period of one year to 10 years when their services were terminated. (Four were terminated on 4-4-2000, one was terminated on 8-4-2000 and one was terminated on 19-4-2000). Their common grievance, as it appears from their grievance petitions separately filed by them was that on 16-4-2000 they alongwith other serving workmen formed union of workmen and submitted the Application to the Registrar. Trade Unions on 28-4-2000 for registration of the same. On the same day of formation of the Union the respondents were elected as different office-bearers of the Union and as a precaution their newly- formed union moved an application before Industrial Relations Commission for issuing of an Interim Injunction which was duly passed by the said Commission in the form of Prohibitory Order whereby the Appellants' Establishment was prohibited from terminating the services of or gate stopping the respondents on account of formation of the Union. Ignoring the said orders the Appellants Establishment terminated/gate stopped the respondents unlawfully by verbal order without assigning any reason.
3. Aggrieved by the said order of termination of their services, the respondents sent grievance notice dated 26-4-2000 to the Appellants' Establishment for redressal of their grievance. In reply to the said notice the respondents were intimated that they had been retrenched from service. But no letter of retrenchment was ever issued nor was it served on them nor were they told that in case of their refusal of its acceptance it would be sent for publication in Daily Jasarat. Thus their grievance remained underdressed and they continued to remain jobless. Thereafter they filed separate grievance petitions more or less on the same date i,e, 20-5-2000 with prayer that impugned orders of termination of their services be declared as unlawful and they may be reinstated in service with full back-benefits.
4. Denying the respondents' above allegations, the Appellants' Establishment filed a Reply Statement taking a plea that the services of the respondents were terminated in consequence of the retrenchment and not due to formation of Trade Union of which they had no knowledge.
However they first came to know about the formation of the Union from the notice of the N.I.R.C.
Whereupon they lost no time in sending a letter to the Registrar of Trade Unions opposing the registration of the Union on the ground that it was formed by the Ex-employees who were no longer in the employment of the Appellant Mills. It was further pleaded that retrenchment was made strictly in accordance with law and the retrenchment letters were delivered to the workers concerned in presence of witnesses. They were also issued direction to collect their dues.
5. In support of their respective cases the parties have filed Affidav its- in-Evidence the respondents their personal Affidavit-in-Evidence and the Appellants' Establishment the Affidavit- in-Evidence of Mr. Burhanuddin, Assistant Manager, I have gone through these Affidavits and have also heard the arguments of the learned counsel of both the parties.
6. According to Appellants' advocate the lower Court was wrong in basing its entire, judgment on the sole point that the person who had signed Written Reply was not produced in evidence nor had that person verified the said Statement on oath. His contention on the contrary was that the necessary verification of the Written Statement had been made on oath but the respondents had failed to rebut the Appellants' version of the case that their services were terminated on account of retrenchment made in the Appellants Establishment. On the other hand the plea taken by the respondent's advocate was that termination of services of his clients was not only unjustified but was also unlawful because it was motivated by their action of formation of Trade Union with co- operation of other workers. Thus the main question raging between the parties was whether the impugned orders of the respondents' termination of services were justified and whether the said orders were passed in accordance with law. In this connection first of all reference may be made to the Affidavit-in-Evidence of the appellants own witness. Mr. Burhanuddin in order to ascertain how far he has, supported the appellants' case that the services of the respondents were terminated due to retrenchment. Of course in para 6 of his affidavit he has stated that respondents' services were lawfully retrenched by written order served on them and they had signed the same in token of -its receipt and further that they have admitted this fact in course of their cross-examination. But he has totally belied himself by his replies to questions put to him in course of cross-examination.
He admitted: ' it is correct that about 11/12 persons were retrenched and new persons were kept in service in their place. It is correct that as per Attendance Register produced by him services of 7 persons were terminated.
' From his above admissions it was evident that he was not sure about the actual number of persons retrenched. Even if it was believed that as stated by him 11/12 persons were retrenched, his admission in the same breath that new persons were kept in service in their place totally falsified the plea of retrenchment. If the respondents were really retrenched from service, surely there was no justification for induction of new parsons in their place. Thus the appellants' plea of retrenchment stood falsified by admission of their own witness. There is no other evidence worth the same in support of retrenchment of the respondents. The appellants' aforesaid witness by his admission indirectly supported the respondents' case in as much as that real reason for termination of their services was the formation of Trade Union in the Appellants' Mills. His further admissions indicate as if he was totally unaware of the situation obtaining in the Appellants' Mills.
On one hand he admitted that 50 workers were working in the Mills on 31st March, 2000 but on the other hand his statement was that on the last day of the following month i,e, April he was not sure if 54 workers were working in the Mills though in the same breath he had stated that, may be, 40 to 45 workers were working on that date.
7. As regards the written statement he stated-that it was signed by him but after it was shown to him in course of cross-examination he went back on his earlier reply and stated that it was signed by one Abdul Jabar and not by him. On perusal of the written reply it is revealed that it was signed by one Abdul Jabbar Manager of the Appellants' Factory. Of course the word' verification' appears immediately after signature of said Abdul Jabbar but if it means verification on oath then it should have been before the person authorized to take oath. No name or signature of such person is given throughout the Reply Statement. As is written in the verifications the said Abdul Jabbar had made verification on his own and not before any person or authority competent to verify his written reply on oath. As such it is clear that written reply was not made on oath nor Mr. Abdul Jabbar who had signed the written reply was produced in evidence. In this connection the learned Labour Court has rightly referred to the Supreme Court authority reported as PLD 1972 SC 25 wherein it was held that written statement cannot be exhibited in the case if the person filing the same had not been examined in Court. Similarly in 1990 PLC 460 it was held that averments of such reply (not properly verified on oath) could not be taken into consideration as evidence in rebuttal. The other authorities on the same point as rightly noted by the learned Labour Court are 1990 PLC 429 and 1990 PLC 63. The sum and substance of these authorities is that if the person who had filed the reply statement was not examined on oath the reply statement would have to be kept out of consideration and could not be read as evidence.
8. In the present case as pointed out above not only the written statement was not verified on oath but also the person (Abdul Jabbar) who signed and produced it had not been examined in evidence. Therefore, in view of above authorities the written reply could not be used as part of evidence. Consequently whataver averments are made by the appellants in the said statement would be of no avail to them, as no such averments had been raised by them.
' In view of above discussion I am convinced that the termination of services of the respondents was not the result of retrenchment but their services were dispensed with due to some other reason which could only be the unhappiness and annoyance of the Appellants' Establishment over formation of Trade Union by the respondents in co-operation with other workers. As such the termination orders were unlawful and fit to be quashed. Accordingly while dismissing all the six appeals, the decision of the Lower Court in this regard is hereby maintained.